Tories need more than suspicion to trigger new vote in Saint John Harbour, lawyers argue

Justice Hugh McLellan says he will rule in late August whether to throw out results from last year's election in Saint John Harbour — the only riding New Brunswick Liberals won within 100 kilometres of Saint John. 

"You have been patient, but you will have to be patient a little longer," McLellan told Liberal MLA Gerry Lowe and his Progressive Conservative challenger Barry Ogden, who has been fighting his 10-vote loss since last September. 

Ogden's legal team has challenged the validity of 71 votes cast in the election — significantly more than Lowe's margin of victory — and argued in a lengthy presentation Tuesday those "questionable" ballots cast doubt on the true result.

On Wednesday, Lowe's lawyers laid out their own case that the election was valid and should be left alone.

Tom O'Neil said 5,000 people went to the polls last September and fairly elected Lowe, a result that can only be set aside under extraordinary circumstances not present in the case.

"We are not talking about the rights of candidates. We are talking about the rights of electors.  We are talking about the rights of the 5,000 people who voted," said O'Neil.

The PCs have raised questions about 71 votes, but O'Neil said there is little proof of anything amiss with them. And, to the extent there were problems, there is no evidence the group of 71 voted more for Lowe than they did for Ogden, he said.

Eight of the votes the PCs question involve people who appeared to cast ballots while living in other ridings.

McLellan pressed O'Neil if he would concede that happened. O'Neil's co-counsel, Tim McLaughlin, acknowledged it was possible but would not agree there was proof it occurred.

"Do you have any facts to show these eight did not vote?" pressed McLellan.

"No," said McLaughlin, adding it was irrelevant even if they did. 

Setting aside an election requires proof election procedures were not followed, and McLaughlin said there are procedures for voters to swear an oath they live in the riding they are voting in. If it turns out that's a lie, it's an offence committed by them, not a failure of election procedure, he said.

The proper remedy is to charge the voters with an offence, said McLaughlin, not throw out the election.

Elections New Brunswick lawyer Frederick McElman did not take a position on whether there should be a new election but did say Ogden needed more than suspicion of improper voting to trigger a new vote.   

He said PCs had exposed improper forms had been used in some cases and were improperly filled out in others, but he said that only raised the possibility invalid votes were cast. They really needed to prove improper votes were cast and that those votes then tilted the election to Lowe.

Lowe's seat is critical to both parties.

It's the only riding Liberals won in southern New Brunswick and is an important base the party hopes to build on in the next election.

But if the Tories could force a new election and win the riding, it would strengthen their minority government by giving them a 23rd seat in New Brunswick's 49-seat legislature.

McLellan said he would prepare a written decision by the end of August.